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10/17/96 PEOPLE STATE ILLINOIS v. EDMUND W. RYAN

October 17, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, EX REL. DAVID W. NEAL, STATE'S ATTORNEY OF GRUNDY COUNTY, PLAINTIFF-APPELLANT/CROSS-APPELLEE,
v.
EDMUND W. RYAN (ONE 1988 GMC G-250 SIERRA TRUCK VEHICLE IDENTIFICATION NUMBER 1GDJV34J7JJ501839), DEFENDANT-APPELLEE/CROSS-APPELLANT.



Appeal from the Circuit Court of the 13th Judicial Circuit, Grundy County, Illinois. No. 95--MR--32. Honorable Paul E. Root, Judge Presiding.

Released for Publication November 22, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice. Justice McCUSKEY delivered the opinion of the court. Holdridge, P.j., and Lytton, J., concur.

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

On October 30, 1995, the State filed a complaint for forfeiture against a 1989 White Dodge GMC Sierra Truck, vehicle identification number 1GDJV34J7JJ501839 (truck), owned by the claimant, Edmund W. Ryan. The complaint was based on section 12(a)(3) of the Cannabis Control Act (720 ILCS 550/12(a)(3) (West 1994)) and the Drug Asset Forfeiture Procedure Act (the Forfeiture Act) (725 ILCS 150 et seq. (West 1994)). Following a hearing, the trial court found the truck was not used to facilitate the transportation, sale, receipt, possession or concealment of cannabis. Therefore, the trial court denied the State's complaint for forfeiture. The State appeals, and for reasons which follow, we affirm.

BACKGROUND

On August 11, 1995, Ryan was driving his truck from Aurora to Morris to deliver garbage to the landfill in Morris. The garbage was from Ryan's work as a construction site clean-up person. After dropping off the load, Ryan was stopped on Illinois Route 47 by Morris police officer Brent Dite. The officer stopped Ryan's vehicle because it was missing a rear license plate.

Officer Dite conducted a check of Ryan's license, registration and proof of insurance documents. No problems were found, and the officer returned the documents to Ryan. What happened at this point is disputed by the parties.

OFFICER DITE'S TESTIMONY

According to Officer Dite, he returned the documents and advised Ryan that he was going to give Ryan a verbal warning concerning the missing license plate. Ryan then asked the officer if he would like to see the missing license plate. Officer Dite informed Ryan that he did not have to produce the license plate, but he may if he wished. Ryan reached behind the seat and retrieved the license plate. Officer Dite then asked Ryan if he had anything illegal in the truck. Ryan said no and told the officer that he could check if he so desired.

Following the discussion about the license plate, Officer Dite asked Ryan to exit the truck and stand by the curb. By this time, another officer was on the scene, and he stood by Ryan on the curb. Officer Dite noticed a duffel bag sitting on the seat of the truck. He unzipped the bag, and saw another bag inside which appeared to contain cannabis. Officer Dite then told the second officer to place Ryan under arrest.

CLAIMANT RYAN'S TESTIMONY

According to Ryan, Officer Dite returned the documents and told Ryan that everything was "clean." After turning around and taking a step towards his squad car, Dite quickly turned back around and asked Ryan if he had any illegal knives or guns in the truck. When Ryan said no, Officer Dite asked for permission to search the truck.

Ryan asked, "can I stop you?" The officer did not reply. Ryan then asked the officer if he thought the truck was stolen. Again, Officer Dite did not reply. Ryan said he volunteered to retrieve the license plate from behind the seat. Because the seat was a bench-style seat, Ryan exited the vehicle on the driver's side and walked to the passenger side to raise the seat and retrieve the license plate. Officer Dite then said he was going to search the truck, and Ryan did not respond. After this exchange, Ryan picked the duffel bag off the seat and held it under his arm as he stood by the curb. The officer demanded to see the duffel bag, so Ryan handed it to him. Dite opened the bag and ...


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